In early April 1976, Potter Stewart, Lewis Powell, and John Paul Stevens met for lunch at the Monocle, a venerable Washington steakhouse, and decided the future of the American death penalty. The three U.S. Supreme Court justices were in a bind. Each harbored substantial misgivings about capital punishment, but each man — Stewart especially — also felt constrained by the issue’s peculiar constitutional history and by the tidal wave of public support that returned the death penalty to the Supreme Court just four years after a splintered court had declared it dead.
In 1972, Stewart had brokered a 5-4 decision holding that the death penalty as then practiced violated the Eighth Amendment’s ban against cruel and unusual punishment. The court’s ruling — in Furman v. Georgia — was a spectacular long shot. Just one term earlier, in 1971, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. Furman seemed headed in the same direction until Stewart struck an eleventh-hour deal with Justice Byron White, who’d been on the fence for most of the term. Stewart would abandon the moral statement against the death penalty that he’d intended to make and would instead say that the problem with capital punishment was excessive arbitrariness.
Arbitrariness thus became the dominant theme in the most splintered decision in Supreme Court history. Each justice in the Furman majority wrote his own solo opinion — meaning that he spoke only for himself. Each emphasized a different aspect of arbitrariness. Some focused on racism. Some focused on the failure of states to condemn only the “worst” criminals. Some focused on the infrequency with which the death penalty was employed. No one said precisely how much arbitrariness violated the Constitution. Surely Stewart understood, as his colleagues must have, that the focus on arbitrariness — as opposed to deeming capital punishment unconstitutional per se — left the door open for states to rewrite their laws. Nevertheless, the justices believed that, as Stewart told his clerks, “The death penalty in the United States was finished.”
That intuition couldn’t have been more wrong. Between the Furman decision and 1976, 35 states passed new death penalty statutes. Seven made the death penalty mandatory for murder. Others, including Georgia, instead attempted to make the process less “arbitrary” by requiring capital jurors to find “aggravating” factors, by separating capital trials into the guilt/innocence and sentencing phases we see today and by guaranteeing appellate review of all death sentences.
The political and legal momentum against Furman forced the justices to reconsider their positions. So, over two days of oral argument beginning on March 30, 1976, the justices evaluated the constitutionality of the various new state approaches, with Georgia’s new statute as the test case. The hearing had the feeling of a heavyweight prize fight, pitting against one another two of the great lawyers of their generation: Solicitor General Robert Bork, who, a decade later, would be nominated to the Supreme Court, and Anthony Amsterdam, principal architect of the NAACP Legal Defense Fund’s victorious strategy in Furman and widely acknowledged as the greatest civil rights lawyer of the 20th Century.
Two days later, on April 2, the justices met in conference to consider the new death penalty laws. Justices William Brennan and Thurgood Marshall said they would reject both the statutes that made a death penalty mandatory for murder as well as statutes that gave jurors the discretion to sentence defendants to death. Justice White and three of the Nixon appointees—Justices William Rehnquist, Harry Blackmun and Chief Justice Warren Burger—said they’d uphold both approaches. The case came down to Justices Stewart and Stevens and Nixon’s fourth appointee, Justice Lewis Powell.
At that Washington steakhouse, the troika, as they’d come to be known, decided to split the baby. They would reject the mandatory statutes, which they regarded as barbaric, but uphold the guided discretion approach. Together with the four Nixon appointees, they formed a 7-2 majority in Gregg v. Georgia, upholding Georgia’s new discretionary law, and, with Marshall and Brennan, a separate 5-4 majority rejecting the mandatory statutes. This Solomonic compromise created the bedrock principles of modern death penalty jurisprudence: that a non-arbitrary death penalty satisfies the Constitution and that the requirement of non-arbitrariness could be satisfied by Georgia’s approach.
The Gregg decision revived the American death penalty. It also began a social experiment. Underlying Gregg is an empirical proposition: legal standards would make capital jury decisions more predictable. “Let’s have them be as guided and as rational as they can be,” Stewart told his law clerk Ron Stern in 1976. Yet in five years of archival research and interviews for my book A Wild Justice, I found not a shred of evidence that any of the justices considered social science data. Certainly none is cited in the opinion. The most striking features of the compromise Stewart, Stevens and Powell embraced was the speed with which it was reached, the absence of supporting empirical evidence, and the three men’s unquestioning faith in the power of law and the state and local officials sworn to carry it out.
Forty years later, the data are in on the court’s grand compromise. How one interprets the results may depend on what’s being asked. If the essential question today is whether the death penalty is still being applied arbitrarily, the answer couldn’t be clearer. Arbitrariness is rampant. But, on the occasion of Gregg’s ruby anniversary, let’s ask a more refined question, which more directly honors the case’s peculiar history: Is arbitrariness less of a problem than it was before the Supreme Court got involved in 1972? In other words, has Gregg worked?
The answer is a conclusive, resounding no. Whether one interprets the Furmandecision to have been about — individually or collectively — excessive racism, a failure to identify the “worst of the worst” among murderers, the death penalty’s sporadic use, or simple geographical randomness, the “guided discretion” statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse.
Almost all of the justices in Furman noted the low percentage of death-penalty eligible murders that resulted in death sentences. They estimated the rate to be between 15% and 20%. From this statistic, the justices drew different conclusions. Brennan and Marshall cited it as evidence that the death penalty had been rejected by contemporary standards of decency (though the truth is they would have opposed the death penalty regardless). White said an infrequently-used death penalty couldn’t adequately deter crime. His idiosyncratic opinion seemed to invite mandatory laws.
A third view seemed to get at something important about what a constitutional death penalty might look like. Not even the most ardent supporters of the death penalty believe that all murderers should be executed. Somewhere a line has to be drawn, and it should be drawn in such a way that juries regularly accept the penalty’s use. For example, if a state restricted its use of the death penalty to mass murderers it presumably would generate a high sentencing rate. As the state broadened its law to include less aggravated kinds of murder its sentencing rate would decline as jurors (or judges) rejected borderline capital charges.
Implicit in Furman was the premise that states had for decades defined the universe of death-eligible murders too widely. Implicit in Gregg was the premise that guiding jury discretion would create some balance between death-eligible cases and actual death penalties. But 40 years of statistics tell us that the death penalty is even rarer than it was before.
In gross terms, U.S. executions have been trending downward for some time. Annual executions peaked at 197 in 1935, hovered between 50 and 100 per year during the 1950s, fell further after the NAACP Legal Defense Fund took on the death penalty in the mid-1960s, and temporarily ended with Furman. Post-Gregg, executions peaked at 98 in 1999. They’ve been declining fairly steadily since. Thirty-five people were executed in 2014. Last year, states killed 28 people, the lowest total since 1991. Death sentences have been dropping too—from more than 300 annually in 1995 and 1996 to 73 last year.
Over this period, death-sentencing rates — meaning the percentage of murders eligible for the death penalty who are actually sentenced to death — have experienced a parallel decline. Almost every state-level study has identified a rate either at the low end of, or substantially below, Furman’s 15%-20% threshold. In California, the nation’s largest producer of death sentences, the most comprehensive statewide studies have identified a sentencing rate between 4.6% and 5.5%. In a review of 34 years of Connecticut death penalty cases, Yale’s John Donohue found a sentencing rate of 4.4%. A study of all Colorado murder convictions between 1999 and 2010 revealed a rate of 0.56%.
Read the rest of the article at The Marshall Project (link).